Category Archives: Administrative Law

Administrative Law, Appeals, Courts and Tribunals, LAW FIRM, Practice and Procedure

Craig v South Australia [1995] HCA 58 | 24 October 1995

ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) 

At 179:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

At 180:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.

At 177:

A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.

At 177:

Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.

At 177-8

Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:

  • the absence of a jurisdictional fact
  • disregard of a matter that a relevant statute requires to be taken into account or ignored as a condition of jurisdiction.
  • misconstruction of the relevant statute thereby misconceiving the nature of the court’s function or extent of its powers with respect to the particular issue, though the line between jurisdictional error and mere error of exercise of jurisdiction may be difficult to identify.

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Administrative Law, LAW FIRM, Sports Law

Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019

ON 19 SEPTEMBER 2014, the Federal Court of Australia delivered Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019 (19 September 2014).

Justice Middleton dismissed the actions by Essendon Football Club and James Hird seeking declarations, injunctions and a permanent stay against the Australian Sports Anti-Doping Authority (ASADA).

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Administrative Law, Constitutional law, LAW FIRM

Kable v Director of Public Prosecutions [1996] HCA 24 | 12 September 1996

ON 12 SEPTEMBER 1996, the High Court of Australia delivered Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (12 September 1996).

The High Court established the principle that a State Parliament may not legislate to confer a power on a State Court that is inconsistent or repugnant to the State Court’s Chapter III judicial power as a court exercising federal jurisdiction under the Constitution.

The High Court held that the Community Protection Act 1994 (NSW) was incompatible with Chapter III as it required the NSW Supreme Court to order the continued imprisonment of a person convicted of manslaughter after the expiration of his sentence.

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Administrative Law, Constitutional law, Courts and Tribunals, LAW FIRM, Legislation

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 | 21 August 1992

ON 21 AUGUST 1992, the NSW Court of Appeal delivered Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.

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Administrative Law, Constitutional law, LAW FIRM, Migration Law

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 | 21 August 2007

ON THIS DAY in 2007, the Federal Court of Australia delivered Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007).

http://www.austlii.edu.au/au/cases/cth/FCA/2007/1273.html

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WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 | 15 August 2003

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (15 August 2003).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/171.html

The applicant was a citizen of Iran who applied for a protection visa. Evidence upon which he relied included two letters purporting to show an association with a reformist cleric named Ayatollah Sayed Mohammad Shirazi.

The Refugee Review Tribunal affirmed the decision of the delegate of the Minister for Immigration and Indigenous Affairs not to grant the applicant’s visa, finding that it was not satisfied that he had a genuine fear of persecution and there was not a real chance that he would face persecution upon his return to Iran. The Tribunal concluded that several parts of the applicant’s evidence were implausible and that he was not a credible witness. Specifically, the Tribunal doubted the genuineness of the letters concerning the Ayatollah Shirazi.

It was common ground that the Tribunal did not at any time indicate to the applicant of its doubts about the letters, nor did it give the applicant an opportunity to put his case as to why they were genuine.

The applicant brought proceedings in the Federal Court seeking prerogative writs against the Tribunal’s decision. Those proceedings were dismissed by French J.

The Full Court of the Federal Court allowed an appeal, setting aside French J’s orders, issuing a writ of certiorari and remitting the matter back to the Tribunal. The Full Court held that procedural fairness imposes a duty on the Tribunal to ensure that an applicant is made aware of the case against him or her and given an opportunity to be heard in response to the issues to be decided.

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd | High Court of Australia | 9 August 1949

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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Al-Kateb v Godwin [2004] HCA 37 | 6 August 2004

ON 6 AUGUST 2004, the High Court of Australia delivered Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099 (6 August 2004).

http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html

The High Court held that the provisions under the Migration Act 1958 (Cth) requiring the continued detention of non-citizens for an indefinite period are not prohibited by the Constitution because the purpose of the legislation is the eventual removal of those persons.

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Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) http://www.aat.gov.au/ hears appeals of administrative decisions of Australian Government ministers, departments, agencies and tribunals. A decision may only be reviewed if a specific piece of legislation grants the AAT the power to review the decision.

The AAT began on 1 July 1976 under the Administrative Appeals Tribunal Act 1975 (Cth).

The AAT is authorized to review decisions in over 400 pieces of legislation covering areas such as social security, family assistance, veterans affairs, workers compensation, child support, bankruptcy, civil aviation, citizenship, immigration, corporations, financial services, customs, industry assistance, freedom of information, mutual recognition of occupations, security assessments and passports.

The AAT has five divisions: General Administrative, National Disability Insurance Scheme, Security Appeals, Taxation Appeals and Veterans’ Appeals Divisions

Appeals involve a merits review.  The AAT reconsiders the facts, law and policy relating to the administrative decision on appeal and then makes it’s own decision by affirming, setting aside or varying the decision or remitting the matter back to the administrative decision maker. The tribunal is not bound by the laws of evidence and can inform itself in any manner that it considers appropriate. However, it is required to preform its functions in accordance with the law and is bound by the principles of natural justice and procedural fairness.

AAT decisions may be appealed in the Federal Court of Australia.

The AAT has registries all across Australia. The Sydney Registry is located at level 7, 55 Market Street, Sydney NSW 2000.

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Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 | 31 July 1986

ON 31 JULY 1986, the High Court of Australia delivered Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/40.html

An administrative decision maker’s failure to take into account relevant considerations is an abuse of discretion creating a jurisdictional error that may be remedied by judicial review. The consideration must be relevant and one that the decision maker was bound to take into account.

Determining whether or not a decision maker was bound to take into account a consideration is to be through construction of the statute that confers the decision maker’s power. Implications may arise from the subject matter, scope and purpose of the statute.

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